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October 15, 2004

Read all about Booker and Fanfan

Hooray, the Supreme Court transcript in Booker and Fanfan is now available here (thanks to a reader for the tip). It is a great read — all 110 pages! — though I think most of the highlights have been previously detailed in press and blog reports.

I continue to find especially noteworthy and important the effort by Justice Kennedy at pp. 24-25 to figure out whether there is some way to distinguish different facts for Blakely purposes. Though Justice Kennedy does not expressly articulate the sort of offense/offender distinction that I discuss here, it seems clear that he is eager to avoid a post-Blakely world in which, for purposes of the jury trial right, we must be "in for a penny, in for a pound."

As I hope to explain later today at this conference (which will likely be keeping me off-line), I continue to believe my offense/offender distinction creates a sound and sensible way to divide up which facts must go to a jury. Moreover, a re-reading of Almedarez-Torres pointed me to the old case of Graham v. West Virginia, 224 U.S. 616, 629 (1912); in Graham, the Court permits the use of distinct procedures when sentencing on the basis of prior convictions, and justifies the ruling with this telling passage:

This conclusion [that a prior conviction can be subject to different procedures] necessarily follows from the distinct nature of the issue and from the fact, so frequently stated, that it does not relate to the commission of the offense, but goes to the punishment only, and therefore it may be subsequently decided.

October 15, 2004 at 07:15 AM | Permalink

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Comments

I AM SO LOST I HAVE READ AND READ ABOUT BLAKELY AND FAN FAN AND BOOKER. I HAVE 21 BROTHER AND ONE SISTER IN THE FEDERAL PRISON FOR DIST. THE HAVE SERVE 8 TO 11 YEARS ALREADY. DO YOU SEE FORTH OF ANY OF THIS GOING RETROACTIVE? So the can come home? I THANK YOU IN ADVANCE. JUREA

Posted by: JUREA CRUDUP | Oct 19, 2004 1:47:21 PM

I am a white collar defendant awaiting sentencing. According to my Plea deal, three contested factual issues must be determined by the Court (i.e. Amount of Loss, Number of Victims and Breach of Trust). In the PSI, the PO did not even address the disputed facts or the Blakely challenges. Will the Booker/Fanfan decision, eliminate the absurd reality that PO'S call the shots for the Judges (another violation of Article 6)? If it does not, I want my case to be the test case. Please help.

Posted by: RC | Oct 27, 2004 10:44:58 AM

Does the decision in Fanfan and Booker make it unconstitutional for a judge to use evidence that was supressed to determine a sentence. My brother was sentenced to 9 years in fed prison for possession of firearms. He plead guilty to some charges of the inditment but not to the grenades that were supressed by the judge. Also he was given an enhancement for ubstruction because the judge believed he lied by saying the woman that told the police she lived with my brother and brought the police in his apartment didn't live there. Can a judge give that enhancement just on his believe when there was evidence that supported my brothers statements in court about the woman not living with him.

Posted by: Toni | Jan 12, 2005 10:25:54 PM

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